A California Court of Appeal has ruled that an employee who used a company-provided scooter to move around a factory can sue for disability bias after the scooter broke and was not replaced by the employer. This despite the fact that there was no medical evidence of disability, the employee worked for six months without using a scooter before deciding to retire, and the employee never told the Company he could not do the job without the scooter.

The employee in Ayzenshteyn v. Rexam Beverage Can Company was a former factory supervisor who had foot surgery in 1996 to correct a condition commonly known as "hammertoe." The employee tended to work long hours and his job required him to spend a lot of time walking the factory floor. At the time of the surgery, his doctor said he was disabled for three months because of the "extensive surgery," which involved the removal of joints from four toes on each foot. After the employee returned to work, the company provided him with a scooter.

The scooter was damaged by a factory forklift in 2004 and the company did not replace it. Instead, it required the employee to walk the factory floor. The employee did so for about six months and then retired.

The employee sued under the California Fair Employment and Housing Act (FEHA) for, among other things, disability discrimination, failure to make reasonable accommodation and constructive termination. The trial court granted the company's request for summary judgment but the Court of Appeal overturned that decision and said the employee could go to a jury with his lawsuit.

How the trial will come out remains to be seen. However, this case is a reminder to employers to tread carefully when working with employees who are or who have been temporarily disabled. The plaintiff testified that he told his supervisors that the operation made it difficult and tiring to walk long distances. That was enough evidence to warrant a trial on whether the Company knew about the disability. The fact that (1) the plaintiff never presented his disability or its restrictions to the Company in writing, or with medical documentation, and (2) plaintiff worked over six months without the scooter, did not miss any days because of foot problems, and did not tell the Company he could not do the job without the scooter or other accommodation did not mean, according to the Court, that the Company did not have knowledge of the plaintiff's disability. Companies need to pay careful attention to employees who let the Company know about disabilities, either formally or informally.